The Parable of the Two Daughters – II

We have all heard that you can’t legislate morality; government should not even try. Many social changes of the past half century, from the legalization of gambling and liberalization of drug laws to changes in how sexuality is regarded, have come from government abandoning its role in areas once thought to be proper for it.

Former Canadian Prime Minister Pierre Trudeau, when liberalizing Canadian laws on divorce and homosexuality in 1968 stated that “there’s no place for the state in the bedrooms of the nation.”

Apparently though what happens in the rest of the house is now fair game.

There has been some concern in Canada in recent years over what is called “judicial activism.” The premise is that judges are not enforcing the law as written but rather as they think it should be. I’m not sure often that actually happens, but certainly it appears true in specific cases, especially the one we looked at yesterday and continue with today.

The legal issue in question revolved around a will. A man had two daughters (and you know if you read yesterday’s post that I think this story sounds very Biblical). The younger one was in a relationship with a man of another race and had a child with him. The furious father, supposedly not condoning the intermingling of races, disinherited her. Upon his death she sued to have the will overturned. Or that is how, according to the newspapers, the story unfolded in the courtroom.

The judge overturned the will, essentially saying that there is no place for racist sentiment in our society. The estate is to be divided between the woman and her sister, who also had been estranged from her father, but nevertheless had been bequeathed the entire estate.

It saddens me that anyone would make such a big deal out of race, if indeed the decision to disinherit one of the sisters was racially motivated. The will is actually silent on the issue. However I am equally saddened that a judge would so greatly misunderstand the role of the judiciary in the legal system. The motivation behind the bequest may have been odious, but there is no indication it was illegal. (There are things it is illegal to do with your money when you die, such as leave it to a terrorist organization.). Just because I don’t like racism and the judge doesn’t like it does not affect the legal issue. There is no suggestion the deceased was not of sound mind when he made his will (unless racism is now considered mental illness). Under the law he can leave his money to whomever he likes for whatever reasons. It is not for any judge to decide that he must divide his estate between his daughters.

What is the role of the state here? If it has no place in the nation’s bedrooms I would argue that it has no place interfering in parent-child relationships. Or if it does, where was the state when the man and his daughters became estranged? Where does the responsibility begin and end?

I have great respect for the judiciary. As a newspaper reporter I spent a lot of time in courtrooms. But this decision strikes me as absurd. Until now the law was pretty clear: it was your choice not the state’s as to who would inherit your worldly goods. If judges are going to start ignoring time-honoured principles (and the law), allowing their personal bias to guide their rulings, then perhaps there is a deeper level of scrutiny needed.

When that scrutiny is applied to this case, more questions are raised. Is racism always unacceptable, or does it depend who holds the views? What about sexism? If a black man disinherits his daughter and mixed-race grandson, can a white female judge be unbiased in rendering a decision, or is her judgement suspect because she is not a black man?

For me the strange thing is that I think the judge’s sentiments would be shared by most people. But does that justify what appears to me as a layman to be a decision to completely ignore the law to achieve the end she desired? How would you decide?